What a Waste

The Sotomayor hearings were a mass of missed opportunities for Republicans and Democrats alike.

This could have been different, I kept thinking all day. These hearings didn't have to go this way. The instant Sen. Jeff Sessions used his second round of questioning to go back to the well of the "Wise Latina" issue, probing yet again at Sonia Sotomayor's alleged bias and wise Latina prejudice, it was perfectly clear that Senate Republicans wanted this hearing to be all about race and that her single, mangled half-sentence was the linchpin of their strategy. There were lines of people waiting patiently to get into these hearings, even if just for a few moments, and what was striking about it is that so many of them were very young, so many were women, and so many were of different races and colors. America's future was waiting in line to get a glimpse of a hearing at which the woman who will become this country's first Hispanic justice was repeatedly called out as someone with a race problem.

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

I don't think this is all posturing. Listening to Jeff Sessions and Lindsey Graham and John Cornyn speak, it's clear that their anxieties about a changing America are real. Still, by making the whole case against her with a long, loopy line between her "wise Latina" speech and her panel decision in the Ricci case, they chose to turn this historic hearing into a crabbed and bitter conversation about the impact of race on America. Even though we might wish that she never gave her 2001 Berkeley speech, the speech reflects a deeper and more honest struggle with racial diversity than the one we have had here this week. Here is what she said in that speech:

America has a deeply confused image of itself that is in perpetual tension. We are a nation that takes pride in our ethnic diversity, recognizing its importance in shaping our society and in adding richness to its existence. Yet we simultaneously insist that we can and must function and live in a race- and color-blind way that ignores these very differences that in other contexts we laud. That tension between "the melting pot and the salad bowl"—a recently popular metaphor used to described New York's diversity—is being hotly debated today in national discussions about affirmative action. Many of us struggle with this tension and attempt to maintain and promote our cultural and ethnic identities in a society that is often ambivalent about how to deal with its differences.

It was the GOP's choice to turn this hearing from a conversation about diversity into a fight over race—pressing the firemen from Ricci and the judge's association with the Puerto Rican Legal Defense and Education Fund into evidence against her. Republicans didn't do that with gender over Ruth Bader Ginsburg's nomination. It didn't need to happen this way.

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And it's not just Republicans who made a bad choice. Democrats, too, have failed to use this hearing to their advantage. With an opportunity to talk to all of America about their theory of jurisprudence and to make the case against the Roberts Court's narrow view of justice, they said almost nothing. Some of the only questioning along those lines came from Sen. Al Franken, who made Sotomayor very uncomfortable as he grilled her on the Roberts Court's tendency to overreach. In this term's Voting Rights Act case, the court came close to striking down an act of Congress, and in an age-discrimination case, it decided an issue that was never briefed. Franken politely asked Sotomayor, "How often have you decided a case on an argument or a question that the parties have not briefed?" He wondered whether that constituted judicial activism.

Good question. Why was the junior senator from Minnesota—the one sworn in only a week ago—the first one asking it?

And it wasn't just that Senate Democrats were confused among themselves about whether to embrace John Roberts' umpire analogy. Some of them have now clearly appropriated it, and others laid out vaguely articulated theories about the need for judges to do more than mechanically apply the law—whether it's hearing both sides of the story, or being particularly sensitive to some classes of plaintiffs. But even if you accept that there is nothing to be learned from the nominees themselves at these hearings, Democrats should understand that there is still much that can be taught. I learned more about liberal theories of jurisprudence from the Democrats' opposition to Roberts and Alito than I could glean from their support of Sotomayor. Sure, I get that Democrats like women and the environment and privacy. That comes up a lot in today's questioning. But that's not a judicial ideology. Nor is just calling balls and strikes—but that is the only theory we seem to have left in America.

It probably didn't help that Sotomayor threw empathy under the bus yesterday when she repudiated President Obama's never-to-be-spoken-again standard for the quality he most seeks in a jurist: "Judges can't rely on what's in their heart. ... It's not the heart that compels conclusions in cases; it's the law." I have my own doubts about the utility of the word empathy in describing what's lacking on the Roberts Court. I worry that it is too malleable to be useful and too easily caricatured. In certain ways, the empathy standard set Sotomayor up for the very attacks she has garnered—she's too emotional, too prejudiced to be fair. No wonder she torched it. Her only job here was to get confirmed.

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But at least Obama's empathy standard was a start toward articulating a liberal judicial theory. Now Senate Democrats are back at the drawing board. Writing with cheese.

So consider this: Republicans came into these hearings with nothing to lose. They were never going to block this nomination, but they could have used these days to make it clear they are not the party of Rush Limbaugh and Joe the Plumber. They could have questioned Sotomayor about her record, her views, even asked a tough question or two about wise Latina women. They opted not to.

Democrats also came into these hearings with nothing to lose. They were going to seat this nominee, tee up the next two, and school the American people on why the Supreme Court matters and how it's letting them down and explain why balls and strikes are half the equation. They opted not to. When you think of it that way, beyond just being a waste of time, these hearings were also a waste of a thousand opportunities.